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Deep Capture – Part X

This is the tenth part of a series on what Situationist Contributor David Yosifon and I call “deep capture.” The most basic prediction of the “deep capture” hypothesis is that there will be a competition over the situation (including the way we think) to influence the behavior of individuals and institutions and that those individuals, groups, entities, or institutions that are most powerful will win that competition.

Previous posts in this series (which are summarized at the bottom of this entry), reviewed a sample of the evidence indicating that pro-commercial dispositionism has been widely accepted as the presumptive starting place for policy analysis. The previous post in this series described the strategy of relying on credible third-party messengers. This post suggests how that strategy may have influenced legal theory and law.

(Situationist artist Marc Scheff is providing the remarkable illustrations in this series.)

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There is a vast range of interconnected evidence (too vast to do justice to in this subsection) of pro-commercial interests investing to deeply capture the many “credible third parties” that might influence the many “targeted audiences” (including all of us) to accept pro-commercial worldviews. In this subsection we will focus on a small sample of that evidence. Although the sample is small, it will hit close to home for much of our audience and will, we hope, strike a more direct and personal chord than the Galileo discussion may have.

Consider the world of legal scholarship. Large business interests have attempted to locate, create, and sponsor the production and dissemination of pro-commercial legal scholarship by legal scholars who have served as credible, if often unwitting, spokespeople for business ends. More specifically, consider some of the evidence regarding the goals and influence of the John M. Olin Foundation.

According to the Olin Foundation’s Web site,

the general purpose of the John M. Olin Foundation is to provide support for projects that reflect or are intended to strengthen the economic, political and cultural institutions upon which the American heritage of constitutional government and private enterprise is based. The Foundation also seeks to . . . encourag[e] the thoughtful study of the connections between economic and political freedoms, and the cultural heritage that sustains them.

To advance that goal the Olin Foundation has, among other things, awarded tens of millions of dollars to prominent law schools for the promotion of law and economics scholarship. Over the past twenty years, Olin money has established law and economics programs, or “centers,” at several prominent law schools: the University of Chicago, Yale, Stanford, Harvard, Columbia, Georgetown, Duke, the University of Michigan, the University of Pennsylvania, George Mason, and the University of Virginia. In 1999, a year in which the Foundation paid out almost $20 million in grants to organizations around the country, \Harvard Law School’s John M. Olin Center for Law, Economics, and Business was in the middle of a four-year, $6 million grant, Yale Law School’s John M. Olin Program in Law and Economics was in the middle of a three-year, $1.9 million grant, and the University of Chicago Law School’s John M. Olin Program in Law and Economics was in the middle of a six-year, $2.5 million grant. In May 2003, Harvard received another grant from the Olin Foundation, this time for $10 million, “the largest foundation grant in the law school’s 186-year history.”

Olin money, as we will describe in more detail in subsequent work, has a significant influence not only in encouraging certain types of scholarship, but also in increasing the credibility of that scholarship. It establishes “centers” dedicated to law and economics theory, provides funding for journals through which law and economics scholarship can be stamped with the legitimacy of “peer review” by other legal economists, finances a series of workshops to encourage efficiency-oriented scholars to share and test their views at elite law schools, and gives scholarships and fellowships to top law students who participate in law and economics seminars and produce law and economics scholarship. In short, Olin money has helped to create and advance a critical mass of legal scholars, who begin with the strong dispositionist axioms of neoclassical economics, who write largely for one another and policymakers, and who view themselves (and are viewed by many others) as the only genuinely social scientific members of the legal academy.

The success of the Olin Foundation’s funding of law and economics seems fairly dramatic. Professor Steven Shavell, the director of Harvard Law School’s Olin Program, recently provided one measure of that achievement. Professor Shavell surveyed the academic appointments at the “top 10″ law schools over the last decade. Of forty-three total placements, he found that, twenty-three were Harvard Law School graduates, and ten of those had been Olin fellows. As Professor Shavell told the Boston Globe, “[i]n the long run, we’re going to have a heck of an impact on who’s teaching at the leading law schools, and what the students are learning.”

We would go further. The Olin Foundation and the law and economics scholarship that it has subsidized have already had “a heck of an impact.” Indeed, the scholarly project that the Olin money has sponsored is the same project that is widely understood today to be the dominant paradigm for policy analysis. Professor Shavell has emphasized that the economic analysis of law “has changed the nature of legal scholarship, influenced legal practice, and already proven its tremendous value in policymaking and business.” Furthermore, the Olin Foundation’s Board of Trustees recently declared that their contributions have “supported a wide range of scholars and writers who significantly changed the content and direction of American academic and political discussion.”

Of course, the fact that the Olin Foundation poured millions of dollars into promoting law and economics does not necessarily imply that those investments played a significant causal role in the stunning success of the now-dominant paradigm. It may be, as most of its proponents presume, that law and economics was destined for greatness solely on the merits, and that Olin money simply facilitated an inevitable process that was already underway.

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There are several reasons to suspect, however, that the Olin Foundation’s support, combined with numerous other situational influences, has played a pivotal causal role in the success of the law and economics movement. First, the success of law and economics appears to map closely with the precise ambitions and strategies of the key individuals behind the Olin Foundation: John Olin, the founder of the organization, and William Simon, its longtime president. After leaving his position as Treasury Secretary in the Nixon and Ford Administrations, Simon wrote two best-selling books that outlined his conservative and pro-commercial beliefs and his agenda for implementing them. Simon was a prominent, early exponent of the dispositionist, neoliberal worldview that seeks to promote private enterprise and to minimize the role of government–a worldview shared by John Olin. They also shared a belief that American universities at the time produced ideas and graduates that were dangerously antithetical to those ends. To Simon, this problem was tantamount to a war of liberty versus totalitarianism–a war with three fronts:

1. Funds generated by business . . . must rush by multimillions to the aid of liberty, in the many places where it is beleaguered.
. . . .
. . . [Foundations established by such funds must] serve explicitly as intellectual refuges for the non-egalitarian scholars and writers in our society who today work largely alone in the face of overwhelming indifference or hostility. They must be given grants, grants, and more grants in exchange for books, books, and more books.
2. Business must cease the mindless subsidizing of colleges and universities whose departments of economics, government, politics and history are hostile to capitalism and whose faculties will not hire scholars whose views are otherwise.
. . . .
. . . America’s major universities are today churning out young collectivists by legions, and it is irrational for businessmen to support them.
. . . .
3. Finally, business money must flow . . . to media which are either pro-freedom or, if not necessarily ‘pro-business,’ at least professionally capable of a fair and accurate treatment of procapitalist ideas, values and arguments. The judgment of this fairness is to be made by businessmen alone–it is their money that they are investing.

These are the three fronts on which to act aggressively if we are to create a sophisticated counter-force to the rising despotism. One of my own first actions on leaving the post of Secretary of the Treasury was to accept the job of president of the John N. [sic] Olin Foundation, whose purpose is to support those individuals and institutions who are working to strengthen the free enterprise system.

Thus, Simon, with the support of the Olin Foundation, was trying to alter the playing field on which academic debate takes place–and trying to do so situationally. Furthermore, he understood that the dispositionism of law and economics is pro-business and that many alternative views, otherwise successful in the marketplace of ideas, are not. Simon presented American individualism, much as ad agencies presented the Marlboro Man, as the American tradition and the source of America’s greatness. However, like the Marlboro Man’s creators, Simon seemed to appreciate that such individualism, to be embraced as deeply as Philip Morris, Simon, and others desired, had to be heavily promoted, and reinforced if it is to be widely accepted. And he further understood that the situation can and should be manipulated by, among other things, choosing particular academics, programs, and scholarly camps to give “grants, grants, and more grants in exchange for books, books, and more books.”

In light of Simon’s (and thus the Olin Foundation’s) pro-business mission, there is good reason to believe that the Olin Foundation’s sizeable law and economics investment was money well spent. The point is strengthened when one considers that the Foundation engaged in a kind of “stage financing” of these programs: grants were intended to last for only a few years, at which point the Foundation would consider whether to renew its contribution to a particular program. The fact that the Foundation continued to renew many grants provides strong evidence that it believed that its investments were generating worthwhile returns in terms of encouraging pro-commercial worldviews (and discouraging alternatives) among students, academics, and policymakers.

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Part I of this series explained that our “deep capture” story is analogous to the (shallow) capture story told by economists (such as Nobel laureate George Stigler) and public choice theorists for decades regarding the competition over prototypical regulatory institutions. Part II looked to history (specifically, Galileo’s recantation) for another analogy to the process that we claim is widespread today — the deep capture of how we understand ourselves. Part III picked up on both of those themes and explains that Stigler’s “capture” story has implications far broader and deeper than he or others realized. Part IV examined the relative power (measured as the ability to influence situation) of large commercial interests today, much like the power of the Catholic Church in Galileo’s day. Part V described other parallels between the Catholic Church and geocentrism, on one hand, and modern corporate interests and dispositionism, on the other. Part VI laid outthe “deep capture hypothesis” a bit more and began loosely testing it by examining the role that it may have played in the “deregulatory” movement. Part VIIprovided some illustrative examples of how atypical “regulators,” from courts to hard-hitting news networks, reflect and contribute to deep capture. Part VIIIcontrasted different cultures for evidence of commercial interests in promoting dispositionism. Part IX described the strategy of employing third-party messengers.

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[…] in promoting dispositionism. Part IX described the strategy of employing third-party messengers. Part X summarized some of the evidence of how pro-commercial interests invested to shape legal theory and […]